Legal Question in Employment Law in New Jersey

Re: addiction disability

There's lots of info online from the EEOC, here's a sample which ought to be helpful to you regarding your second question:

Under the Rehabilitation Act, medical information obtained in connection with the reasonable accommodation process must be kept confidential. This means that all medical information, including information about functional limitations and reasonable accommodation needs, that EEOC obtains in connection with a request for reasonable accommodation must be kept in files separate from the individual's personnel file. It also means that any EEOC employee who obtains or receives such information is strictly bound by these confidentiality requirements.

The Disability Program Manager will maintain custody of all records obtained or created during the processing of a request for reasonable accommodation, including medical records, and will respond to all requests for disclosure of the records. All records will be maintained in accordance with the Privacy Act and the requirements of 29 C.F.R. 1611 and EEOC Order 150.003.

This information may be disclosed only as follows:

supervisors and managers who need to know (including the decision maker who requested that the Disability Program Manager obtain medical information) may be told about necessary restrictions on the work or duties of the employee and about the necessary accommodation(s), but medical information should only be disclosed if strictly necessary.

first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment;

government officials may be given information necessary to investigate the agency's compliance with the Rehabilitation Act; and

the information may in certain circumstances be disclosed to workers' compensation offices or insurance carriers.

Whenever medical information is disclosed, the individual disclosing the information must inform the recipients of the information about the Confidentiality requirements that attach to it.

Taken from: http://www.eeoc.gov/policy/docs/accommodation_procedures_eeoc.html#VII

Re: addiction disability

This is an interesting question whose answer has changed over time and is still changing. To get the very latest on the case law and regulatory law, we would have to do some updating research. Below is a conservative position that may work for you.

The information cited by Mr. Scampato is the EEOC's own procedure and policy for handling claims. It is not binding on you, but it certainly covers the bases if you are looking for a policy to adopt in disability cases.

I suspect that the essence of your question is more specifically related to addiction than to disabilities in general. There are two important things to consider. First, there has been an ongoing legal question as to whether additions fall under the category of disabilities. The older view was that the ingestion of substances is "voluntary" and therefore not a disabiity within the meaning of the statutes. At least for alcohol addition, that view has been discredited in favor of realizing that the addict has little or no control over his/her behavior without assistance, rehabilitation and a program of recovery. The trend has been to treat drugs in the same way. Therefore, you will not go too far wrong by treating addiction as a disability even if the courts have not yet fully bought into this view.

That said, you are NOT required by either state or federal law to continue an employee in a job where they may be a danger to themselves or to others. It is fundamental to the ADA and the NJLAD that, with reasonable accommodations, the employee must be able to meet the full requirements of the job. For example, it is known the Methadone, used to treat heroin addition, is also a mood altering substance. An employer is not obligated to permit a driver to continue driving when being treated with Methadone simply because is is part of his treatment program and he can "function" thereby. So, in all cases, the recovering addict must still be capable of performing all the functions of the job.

The very close question is what to do about the addict who continually relapses. My experience has been that these cases need close individual treatment and, if the employee is to be termiated, an accurate written assessment for the file.

With advanced warning that the material may contain some advice with which your lawyer might disagree, for some non-legal, but very cogent perspective, see

http://www.aa.org/bigbookonline/en_bigbook_chapt10.pdf

My firm handles matters of human resources and employment law. If I can be of further help to you, call or email.

See also: http://info.corbettlaw.net/lawguru.htm